Episode 116: We chat to parents-to-be, Ksenia and Ryan, about their decision to take shared leave, the practicalities of arranging it, and how they think it will impact their working lives.
Statutory maternity, paternity and adoption rights in the UK apply to parents both before and after birth or adoption. The rights provide parents with the time needed to maintain family responsibilities while keeping their right to return to work. Fathers, adoptive parents and same-sex partners are entitled to paternity or maternity leave, adoption and shared parental leave.
This factsheet provides an introduction to maternity and paternity rights, including leave and pay both before and after childbirth. It outlines shared parental leave and looks briefly at adoption rights, which are broadly in line with statutory maternity leave and pay. Lastly, the factsheet offers guidance for employers on implementing, monitoring and reviewing their policies.
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The context for maternity, paternity and adoption rights
Increased participation of women in the labour market has changed traditional models of working families. Given the very high proportion of working men and women who are parents, it makes sense from a societal and employment perspective to support their need to balance work and childcare.
Women employees in the UK have had statutory maternity rights for many years, and fathers and adoptive parents now have statutory rights to paternity leave, adoption and shared parental leave. These rights also apply within partnerships of the same sex, so references in this factsheet to ‘father’, ‘male employee’, ‘men’, ‘he’, ‘him’, etc., should be taken as including women in same-sex partnerships.
As well as maternity, paternity and adoption rights, other important ‘family-friendly’ measures include the right to unpaid parental leave, the right to time off for emergencies involving dependents and the right to request flexible working. See our factsheets on flexible working and working hours and time off work.
The legal position
Most of the relevant UK legislation is consolidated into the Employment Rights Act 1996, the Employment Relations Act 1999, the Employment Act 2002 and the Work and Families Act 2006. Shared parental leave (SPL) arrangements are covered in the Children and Families Act 2014.
Any unfavourable treatment of a woman because of her pregnancy, childbirth or maternity leave is unlawful and is likely to constitute pregnancy and maternity-related discrimination and may also give rise to a constructive unfair dismissal claim. CIPD members can find out more detail on all aspects of maternity, paternity, adoption leave and pay and SPL and all aspects of maternity, paternity and adoption leave and pay and other changes, in our Maternity, paternity, shared parental and adoption leave and pay Q&As, Requesting flexible working Q&As and Parental rights and other family-friendly provisions Q&As.
In the referendum on 23 June 2016 the UK voted to leave the EU. Our Brexit hub has more on what the implications might be for employment law.
From April 2020 the Parental Bereavement (Leave and Pay) Act 2018 will give employed parents the right to two weeks’ bereavement leave following the death of a child, paid at the statutory rate if the parent has 26 weeks’ service.
The Government has consulted on extending maternity redundancy protection but, to accelerate matters, a private members Bill was introduced into Parliament (the Pregnancy and Maternity (Redundancy Protection) Bill 2019). If enacted, this seeks to prevent redundancy during pregnancy and maternity leave and then for six months afterwards. This improves on current protections which end when the employee returns to work. The law currently gives women on made redundant on maternity leave the right to be offered a suitable alternative role in advance of their colleagues, this does not currently extend beyond maternity leave.
There are various descriptions used for maternity leave in the UK. Key terms are:
Compulsory leave: a period of two weeks (four weeks if the woman works in a factory) immediately after giving birth during which the woman is not permitted to work.
Statutory Maternity Leave (SML): the term for the 52 weeks of leave a woman may take. There is no qualifying period for the 52 weeks but there is a qualifying period for some of the statutory maternity pay.
Shared Parental Leave (SPL): the term for shared leave available to either parent.
The earliest date a woman can start maternity leave is the beginning of the eleventh week before the baby is expected. She must provide her employer with details of the week the baby is expected and the start date of her maternity leave. The employer must respond to this notification within 28 days and state the date by which the woman is expected to return to work after her maternity leave entitlement ends.
Employers should assume that an employee will take all 52 weeks of her SML entitlement unless notified to the contrary. Employees may wish to curtail part of their SML to enable their partner to take SPL. Alternatively, they may decide to return earlier than the date they originally notified, in which case the employee should give at least eight weeks’ notice, unless the employer agrees to shorten this period.
Mothers in the UK who qualify are entitled to up to 39 weeks' Statutory Maternity Pay (SMP). To qualify, the employee must:
- work for an employer who is liable (or would be liable but for the employee's low earnings) to pay the employer’s share of Class 1 National Insurance contributions
- have average weekly earnings in the eight weeks, up to and including the qualifying week, at or above the lower earnings limit for the payment of National Insurance contributions
- have 26 weeks' continuous service with her employer (assessed at the 15th week before the week the baby is due).
The first six weeks of SMP is paid at 90% of average weekly earnings and the remainder at the lower statutory level (or 90% of the average weekly earnings, if this is less than the lower level). SMP rates have historically increased in April each year with some exceptions. Current rates can be found on our Statutory rates page or from GOV.UK.
Women who do not qualify for SMP might qualify for Maternity Allowance (MA): this is based on their recent employment and earnings record and is a state benefit which is payable for 39 weeks. To qualify, a woman must:
- be employed but not qualify for SMP
- be self-employed, or have been recently employed
- have been employed or self-employed for at least 26 of the 66 weeks ending with the week before the expected week of childbirth
- earn at least a specified amount per week (set by the Government and currently £30 or more) on average in any 13 weeks in the test period.
Some organisations have more generous contractual terms and pay a woman during all her SML.
Other benefits during maternity leave
All contractual terms (for example holidays or benefits) apart from remuneration continue during SML. The position concerning pension contributions is more complex. CIPD members can see more in our law Q&As on on maternity, paternity, shared parental and adoption leave and pay.
Other rights before, during and after maternity
In addition to maternity leave and pay, female employees who satisfy the relevant qualifying conditions are entitled to time off to attend ante-natal care appointments, at their normal rate of pay on producing proof of the appointment, and to:
- return to the job in which they were previously employed on the same benefits, terms and conditions, if returning from the first 26 weeks of SML
- return to the same job, or one with no less favourable terms and conditions if it is genuinely not reasonably practicable for them to return to their former job, if returning from the later part of SML
- request a risk assessment during pregnancy
- request alternative work where any risks to the health of the expectant mother and baby can be avoided
- full pay while on suspension on maternity grounds if health and safety measures cannot be complied with or reasonable steps to alter working conditions, or offer suitable alternative work, doesn’t avoid the risk
- not be subjected to a detriment, disadvantage, unfair treatment or dismissal because of the pregnancy, maternity leave, etc.
- take up to ten ‘keeping in touch’ (KIT) days during maternity leave without losing any entitlement to maternity pay. The employer is not obliged to offer any KIT days and the employee is not obliged to work any that are offered.
In addition, the Equality Act 2010 prohibits pregnancy and maternity discrimination. Many employers recognise the importance of gender equality, but tribunal claims resulting from pregnancy and maternity disadvantage have been increasing
The main eligibility factors for basic paternity leave in the UK are:
- continuous employment for 26 weeks ending with the 15th week before the baby is due
- the man must be the baby’s biological father or the partner/husband of the mother
- the man has (or expects to have) responsibility for the baby’s upbringing.
The maximum duration of the basic statutory leave is two weeks. Unless agreed otherwise, paternity leave must be taken between:
- the date of the baby’s birth or any day of the week following the birth, and
- within 56 days of the baby’s birth date.
The employee must inform the employer of their intention to take paternity leave by the end of the fifteenth week before the baby is expected. The employee must provide the following details:
- the start date of the leave to be taken
- the week the baby is expected
- the duration of leave to be taken.
The rate of Statutory Paternity Pay (SPP) is the same as SMP. However, an employee who does not qualify for SPP may be entitled to other welfare benefits.
Rights during and after paternity leave
An employee who qualifies for paternity leave is entitled to:
- return to the same job
- return to the same terms and conditions of employment
- not be subjected to a disadvantage, unfair treatment or dismissal.
Qualifying employees are also entitled to unpaid parental leave of up to 18 weeks for each child or adopted child up to their 18th birthday.
Shared parental leave
Shared parental leave (SPL) may also be available. The basic principle is that employed mothers can switch part of their SML and SMP into SPL and shared parental pay, provided the parents satisfy the eligibility requirements. The mother and partner must have worked for their employers continuously for at least 26 weeks up to the 15th week before the expected week of childbirth.
The mother can choose whether to give up her SML and the parents can choose how they share any SPL, either taking it in turns or taking time off together. The eligibility, notification and variation procedures are complex but at least eight weeks’ notice must be given before the start of SPL.
SPL becomes available once the mother has given notice to end her entitlement to maternity leave early:
- The minimum period of leave must be one week.
- The leave must be taken in multiples of complete weeks as either one continuous period or discontinuous periods.
SPL has been criticised because the take up has been very low despite a government campaign to encourage more parents to take it.
Listen to our shared parental leave podcast. CIPD members can find out more in our Maternity, paternity, shared parental and adoption leave and pay Q&As.
Statutory adoption leave and pay in the UK have been broadly in line with statutory maternity leave and pay since April 2015.
The primary adopter can also take paid time off for up to five adoption appointments. The other adopter can take unpaid time off for up to two appointments.
Qualifying employees may take up to 52 weeks' adoption leave. Some surrogate parents are also entitled to adoption leave.
If a couple jointly adopt a child, one adoptive parent may take adoption leave and the other may be able to take paternity leave and shared parental leave in broadly the same way as they do following the birth of a child (see above).
Statutory Adoption Pay (SAP) is payable for 39 weeks and there is a qualifying service requirement of 26 weeks’ continuous employment. The rate of SAP is the same as SMP (see above). Adopters whose average weekly earnings are below the lower earnings limit for National Insurance purposes do not qualify for SAP but may qualify for other welfare benefits.
Guidance for employers
Include references to maternity, paternity and adoption rights in equality, diversity and work-life balance policies and promote these to staff.
Monitor and evaluate take up of available provisions to ensure that they:
- comply with any extensions and alterations to these rights as they occur
- continue to meet the needs of both the business and the individual
- don’t exclude some employees or cause unfair disadvantage.
Make sure that line managers understand how to implement the organisation’s policies, and know how to access further information and guidance. Staff handbooks and employment literature should explain the provisions clearly and invite people to raise issues they do not understand.
Recovery of SMP, SPP, and SAP
An employer is able to recover the cost of SMP, SPP and SAP from the Government. The amount that can be recovered depends on the annual National Insurance payments made by the employer.
Useful contacts and further reading
Books and reports
CABRITA, J. and WOHLGEMUTH, F. (2015) Promoting uptake of parental and paternity leave among fathers in the European Union. Luxembourg: Publications Office of the European Union.
DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS. (2015) Shared parental leave: public attitudes. London: BIS.
DEPARTMENT FOR BUSINESS, INNOVATION AND SKILLS and EQUALITY AND HUMAN RIGHTS COMMISSION. (2016) Pregnancy and maternity-related discrimination and disadvantage: final reports. London: BIS and EHRC.
HOUSE OF COMMONS Women and Equalities Committee (2018) Fathers and the workplace. HC 358, Session 2017-19.
INCOMES DATA SERVICES. (2015) Maternity and parental rights. Employment law handbook. London: IDS.
ALIDINA, R. (2019) Why a more robust paternity leave policy is key to gender equality. People Management (online). 13 March.
KIRTON, H. (2018) Staff feel ‘cynical’ about employers’ approach to shared parental leave. People Management (online). 11 July.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was last updated by Lisa Ayling, solicitor and employment law specialist, and by Rachel Suff.
Rachel Suff: Senior Employee Relations Adviser
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